Constitutional Law

Brian H. Donohoe Excerpts

Tuesday 15th January 2013 Commons Chamber

[The Secretary of State for Scotland (Michael Moore)]

I beg to move,

That the draft Scotland Act 1998 (Modification of Schedule 5) Order 2013, which was laid before this House on 22 October 2012, be approved.

I am grateful that we have longer to debate the order than would usually be the case. This reflects the interest that hon. and right hon. Members have shown in the issue and the time they have spent scrutinising it, not least in the Scottish Affairs Committee, whose report is a very important contribution to the parliamentary process.

On 15 October 2012, the Prime Minister, the First Minister, the Deputy First Minister and I signed an agreement on behalf of our respective Governments that will, if the order is approved by this House and the other place, allow a legal, fair and decisive referendum to take place on Scottish independence. We will face the most important political choice that people have taken in Scotland in more than 300 years.

[Mr Brian H. Donohoe (Central Ayrshire) (Lab)]

What is the role of the Electoral Commission? Can the Scottish Government override it or is it mandatory for them to accept what it says?

[Michael Moore]

I applaud the hon. Gentleman’s early intervention. He will not be surprised to know that he has anticipated slightly an issue that I will turn to at reasonable length, with the House’s permission, later in my speech. Put simply, we expect the same standards to apply to the Scottish Parliament as apply here—no greater, no less.

This process began with the Scottish National party’s victory in the May 2011 Scottish parliamentary elections and its manifesto pledge to hold an independence referendum. From the very beginning, we recognised the political mandate that the SNP had secured for a referendum. However, as I set out in the House just over a year ago, the Scotland Act 1998 is very clear that the Scottish Parliament cannot legislate on matters reserved to this Parliament. That includes the constitution and, specifically, the Union of the kingdoms of Scotland and England.

That is why we published a consultation paper on 10 January 2012, which set out the different ways to deliver a legal referendum. Shortly afterwards, the Scottish Government set out their own consultation.

Our paper sought views on how to facilitate a legal, fair and decisive referendum. We set out the available legislative options and stated that our preferred option was to provide the Scottish Parliament with the legal competence to legislate itself. This received the overwhelming support of those responding to our consultation. More than 70% of respondents agreed that the Scottish Parliament should be given that power. Throughout the discussions with the Scottish Government, we stressed that there should also be a single question to deal decisively with the issue of independence. Three quarters of respondents to our consultation agreed. In our consultation paper, we set out our view that the Electoral Commission, the independent body responsible for overseeing referendums in the UK, should be responsible for this referendum. That is the same position as for any other referendum.

The UK Government’s position was supported by 86% of respondents. Indeed, that was a point that the Scottish Government accepted fairly quickly. They moved from their initial proposal to establish a separate Scottish body to oversee the poll to a position of accepting that the Electoral Commission was the right body to oversee the referendum.

We also sought views on timing and on the franchise. On timing, we sought views on when the referendum should be held. Many people supported our view that it should be held sooner rather than later. Indeed, the order before us today provides an end date for the referendum, but it does not prevent it from being held sooner. It will be for the Scottish Government and the Scottish Parliament to set the referendum date.

On the franchise, we asked for views on who should be entitled to vote in the referendum.

--- Later in debate ---

[Mr Ian Davidson (Glasgow South West) (Lab/Co-op)]

I speak to the report of the Scottish Affairs Committee on the subject. I welcome the fact that we have reached this stage and that we are having a referendum. The Committee makes clear our view that the Edinburgh agreement was reached by compromise and consensus between Scots at Westminster and Scots at Holyrood. We congratulate both teams.

It is noticeable that the agreement has been made by Scots, not just between the two Parliaments. Much congratulation has been given to the Secretary of State, but kind words are due to the Under-Secretary of State, the right hon. Member for Dumfriesshire, Clydesdale and Tweeddale (David Mundell), who also played a role in the exercise, and to their teams who constructively engaged throughout. In the same spirit, the Deputy First Minister, the Business Manager of the Scottish Parliament and their teams should be congratulated too.

The deal was reached by a process of collaboration, discussion and debate. It demonstrates that even though the two sides are far apart on the principle of separation, they were none the less able to come together to debate and agree the best way forward procedurally. That is important.

The Committee takes the view that it is right in principle that the practical details of the referendum be handled in the Scottish Parliament. Once our report was published, I read comments from a member of the SNP, who said that it was grudging. Our report is not grudging about the process; we believe it is right in principle that the procedural details be agreed in the Scottish Parliament, but with that power comes responsibility. The referendum will be Scotland’s shop window on the world, so it has to be handled with pride and probity. We have heard from SNP Members that it will meet the gold standard for election conduct. I hope that is true. As we said, we fear the worst but hope for the best.

We need to look at how agreement about the process will be handled in the Scottish Parliament. The Scottish Affairs Committee may diverge from some of my colleagues on the role of the Electoral Commission. In line with how the deal in Edinburgh was reached, we take the view that the best possible option is for the two campaigns themselves to come to agreement. It is better that the participants in the referendum reach agreement on all the procedures. If that fails—if it is not possible—it will be appropriate for the Electoral Commission to play a role.

The title of our report asks, “Can a player also be the referee?” We have some doubts about whether a player active on behalf of only one side can be trusted to set fair rules for something as crucial as the referendum. If consensus cannot be achieved, we want the impartial Electoral Commission to guide us as to what should be decided.

The third and worst option—below consensus and below the Electoral Commission: at the very bottom—would be the pursuit of factional advantage, which could be described as the “aggregation of marginal gains” by the majority with control in the Scottish Parliament and who dread defeat. The point has already been made that the Scottish Government control the Scottish Parliament and they are both the creatures of the SNP. There is genuine fear that at every stage of the process, they will seek to shave advantage, steal inches and make marginal gains on the principle that mony a mickle maks a muckle—that is a test for Hansard.

It is important that scrutiny of the section 30 order and its implementation does not end with its passage through the House. Those of us who are elected by Scots in Scotland, such as my parliamentary colleagues and me, must remember that we represent a larger number of Scots than Members elected to the Scottish Parliament, as turnout in our election was at least 10% higher. If anybody can claim the right to speak on behalf of Scots in Scotland it is us.

We began our investigation by seeking to clarify where power lay for the determination of the rules of the referendum. It is clear and, I think, universally accepted that as of now the Scottish Parliament does not have the power to hold a referendum. Until recently, the Scottish Parliament was unwilling to accept that and prevaricated for a long time over calls for a second question, which it has now abandoned. That prevarication and procrastination delayed both the introduction of the order and the legislation that will come under it, and thus the referendum itself.

It is now clear that the Scottish Government accept that the Scottish Parliament does not have the power to run a referendum or to determine the rules, and that they can only conduct a referendum to dissolve the United Kingdom if the necessary powers are granted to them. When granting such powers, especially as we will no longer have an influence on how they are conducted, we have a particular responsibility to satisfy ourselves not only that the correct powers are being transferred but that they will be used in accordance with the agreement between the Governments, which is related to the order.

I welcome the fact that much is made in the order of the role of the Electoral Commission. Guidelines are set and there will be no second question. There is a deadline for the length of time that the process can run. The Scottish Parliament can and will be held to account, not only by MSPs but by the people of Scotland on the extent to which it abides by those rules. The Committee and I particularly welcome the fact that the statement accompanying the section 30 notice expressed the view that arrangements should meet

“the highest standards of fairness, transparency and propriety, informed by consultation and independent expert advice.”

That is an exceedingly high standard, and I hope that the Scottish Government and the Scottish Parliament will live up to it.

[Mr Donohoe]

My hon. Friend is making a powerful argument on the need for the Scottish Government to give some form of assurance to the Scottish people as to whether they will accept the position of the commission.

[Mr Davidson]

I will come on to that, because we want to place on record our unanimous view as a Committee. That is important, because the membership includes many people who disagree about many things, but there is unanimity on the fact that a referendum will take place, and we very much welcome the steps taken to bring that about. We are of the view, and we wish to make this explicit, that the question of Scottish separation or independence is something that only the Scottish people can decide. Whatever their views, people in the rest of the United Kingdom must be bound by that decision. If, on the other hand, the Scottish people confirm that they wish to remain part of the United Kingdom, we echo the words of the First Minister, who said that the question of separation should be regarded as firmly settled for a generation or more.

Translating the question of “Made in Scotland” into the detail, we think that it is right that the legislation should be introduced in the Scottish Parliament, which will determine the timing and the franchise, subject to the involvement of the Electoral Commission. The wording of the question and the administration of the referendum will be decided by the Scottish Parliament. We do not accept, as I said earlier, the self-serving argument made by the Scottish National party that the Scottish Parliament already has those powers, and that in some way it and it alone has the right to express a view. In the interests of transparency and fairness, and in the interests of devolution, for which many of us here have spent a long time fighting and arguing, we believe in principle that the Scottish Parliament is the appropriate place for those to occur.

We strongly believe that transferring those powers to the Scottish Parliament makes it essential to deal with the issue of losers’ consent. Those who lose the referendum cannot turn round and say that they were cheated if they were responsible for drawing up the rules. There is a heavy burden on the SNP to accept the fact that it cannot subsequently complain that the rules were drawn up unfairly. It cannot cry, “We wuz robbed” if it was responsible for drawing up those rules. With the transfer of that power comes the responsibility to accept the result, as we have said, for a generation or more.

The question of how those powers are exercised brings me back to the aggregation of marginal gains, and the SNP’s intention to seek to gain partisan advantage from every aspect of the referendum process. It has been given the opportunity to twist the rules, and unfortunately it is our expectation that that is what it will try to do. It is difficult for any party in those circumstances to be both a player in the game and to try to exercise the role of a neutral referee, which is why we are of the view that, ideally, consensus should be reached on the rules and regulations. Failing that, the role of a neutral referee is essential.

We are concerned about the timing of the referendum. The Secretary of State said that the process was initiated by the UK Government, who produced a timetable that demonstrated that it would be possible to hold a referendum in 2013. Even though Scottish Ministers in the Scottish Parliament have promoted a referendum on independence since 2007, they failed to introduce a referendum Bill in the Scottish Parliament between 2007 and 2011. The Scottish Government were elected with an overall majority in May 2011, but showed no interest in promoting their core policy until the UK Government issued a consultation document in January 2012. Since then, the Scottish Government have taken every possible opportunity to delay, and they intend to delay the referendum as long as possible in 2014. We very much welcome the fact that the UK Government insisted that the referendum could not be delayed beyond the end of 2014, although we believe that that is unduly long, and that the referendum could and should be held much sooner.

We see no reason for delaying the referendum until the end of 2014, except for perceived partisan advantage. The referendum will be timed to take place after the anniversary of the battle of Bannockburn, which is celebrated mainly because Scots slew large numbers of English people, and after the Commonwealth games in Glasgow. The fact that those events will take place before the referendum gives people the opportunity to celebrate the politics of identity and ethnicity. We thought that Scotland in the 21st and 22nd century would be looking forward, and would be progressive and positive. Celebrating the murder of hundreds or thousands of English people does not necessarily provide the best base on which to move forward. The timing of the referendum to celebrate that ancient battle gives entirely the wrong message to the world about the spirit motivating modern Scotland.

Not only does the delay cause general inconvenience to business and uncertainty but, in relation to the shipbuilding industry in my constituency, it puts a substantial number of jobs at risk by conflating the timing of a referendum with the timing of major orders. We are about to produce a report that will show the difficulties for the future of the shipyards caused by the timing of the referendum. We hope that the Scottish Parliament will take that into account and decide to bring the referendum forward so that it is held much earlier than the end of 2014. We think that the delay has been imposed purely for partisan advantage, and we can see no other logical reason for it, and we condemn undue delay.